State v. Olds

• Citation: 19 Or. 397,24 P. 394
• Parties: STATE v. OLDS.
• Decision Date: 01 July 1890
• Court: Supreme Court of Oregon

24 P. 394

19 Or. 397

STATE v. OLDS.

Supreme Court of Oregon

July 1, 1890

Appeal from a judgment of conviction of the appellant, Charles Olds for the murder of Emil Weber, rendered by the circuit court of the county of Multnomah.

LORD J., dissenting.

This is an appeal from a second conviction of the appellant for the crime of murder in the first degree, the first conviction having been reversed by this court at the October term, 1889. The opinion there delivered will be found in 22 P. 940. The cause being remanded to the circuit court, the district attorney moved to again set it for trial, whereupon it was so set for February 12, 1890. The order setting it for trial at this time recites that it was done by consent of the parties but on the 7th day of February preceding the date at which the cause was set the appellant filed a motion to change the place of trial of the action, upon the grounds that the judge of the circuit court presiding in department No. 2, and the inhabitants of Multnomah county, respectively, were so prejudiced against him that he could not expect an impartial trial either by said judge or in the county. The motion was based on the affidavit of the appellant, which stated in substance that on the 15th day of May, 1889, the indictment was returned by the grand jury charging him with having on the 10th of the same month deliberately, and with premeditated malice, killed Emil Weber; that he was arrested on the day of the homicide, and had ever since been kept in close confinement, with no opportunity to prepare for trial but that the court, notwithstanding his objections, set his case for trial for the 20th day of June, 1889, on which day he was tried, and the trial resulted in a disagreement of the jury; that the court immediately thereupon, against the objection of appellant, again set the case to be tried July 9, 1889; but it was subsequently continued until the 16th day of that month, at which time the trial was had; that on the 31st day of July, 1889, appellant made and filed an affidavit, with several extracts from the Daily Oregonian and Evening Telegram attached thereto as exhibits in support of it, a motion to postpone the trial until the next term of court; that from said affidavits and exhibits the court was fully advised that the public mind was greatly influenced and prejudiced against him, and could not fail to have known that he could not have a fair and impartial trial at that term of court; that, notwithstanding said facts, the court overruled the motion, and forced him to trial, in consequence of which a verdict of guilty was found against him. He further said that he believed that the said judge was so influenced by the course pursued by said newspapers, and so prejudiced against him, that he could not expect an impartial trial in a court over which he presided; that he believed that the judge was in great fear and dread of attacks from said newspapers, if he failed to pursue a course which would meet with their approval; and that such dread and fear would prevent him from pursuing an independent course and giving appellant a fair trial. A further ground for his belief that the judge was prejudiced was that when he was called into court to have his case set for trial the last time one of the counsel on his former trial notified the court that the senior counsel who had conducted his former defense was confined to his room by sickness at Tacoma. That another of his counsel, who had assisted at the argument of the case in the supreme court had gone to San Francisco, and that the day of his return was uncertain. That another lawyer who had been negotiated with to assist in the defense was confined at home by sickness, and it was impossible to know when he would be able to attend court. The court, however, fixed said 12th day of February for the trial, although the district attorney expressed his willingness that it should be fixed for a week later; the judge saying that in view of the business on the docket he would not change the time. That, as appellant was informed and believed, there was business on the docket which would have occupied the whole time of the court during the week asked for, and he believed that the only reason why the court refused to allow another week for his counsel to prepare his case was that he was influenced by his prejudice against appellant, and his fear of attack by the newspapers. That he believed that the inhabitants of the county were so prejudiced against him that he could not expect a fair trial therein. That, in addition to the causes stated in his affidavit, and the exhibits thereto attached, were the following: After his second trial, and the judgment was entered upon the verdict of the jury, that he caused the case to be appealed to the supreme court, where the judgment was reversed, and after it was known to the Daily Oregonian that newspaper attacked the decision with great bitterness, and the majority of the court which rendered it; which attack was published therein on the 17th day of December, 1889, a copy of which is attached to the affidavit, and made a part of it. That the effect of the publication was, as he verily believed, to still further prejudice the inhabitants of the county against him; to increase the fear of the judge of the court that he would be likewise attacked if he should not please the said newspapers with his action. That the Evening Telegram, under date of February 4, 1890, caused to be published in its columns an article relating to his possible application for a change of place of trial for the purpose, as he verily believed, of forestalling, as far as possible, any action he might think necessary to take in the matter, and, if possible, prevent the court from granting such application if made, and also for still further influencing and prejudicing the inhabitants of the county against him. A copy of this article was also attached to and made a part of said affidavit. The attorney for the state endeavored to controvert the said affidavit by the affidavits of a number of persons, stating that they were citizens of Multnomah county, and were acquainted with many other citizens thereof, and believed that the accused could have a fair and impartial trial therein; that a jury could be selected from the body of the county who would not in any manner be prejudiced against him. The said motion, at the request of the said judge of department No. 2, was heard before the judge of said court, who presides in Department No. 1 thereof, and the same was denied. When the case came on for trial, a jury was selected from 300 names drawn, two of them having been taken after the accused had exhausted all his peremptory challenges. Seven of the jurors drawn stated upon their examination for cause that they had formed and expressed an opinion as to the guilt or innocence of the accused, and one of those was allowed to sit in the case. Upon the trial the following testimony was given regarding the circumstances of the alleged crime:

John Bose testified, in substance, that he was in the employ of Weber. That on the day of the homicide, the 10th day of May, 1889, he started with the deceased to go to their boarding-house on Alder street, in the city of Portland. That they left the barber shop about 1 o'clock P.M., went west on Alder street, and at the corner of Second and Alder met Mrs. Weber and Miss Walters with a gentleman friend. That they stopped and talked with them 5 or 10 minutes. That they then went on the north-east corner of Third and Alder streets, where they met Mr. Gullixson, and Weber ordered a mat from him to be put in front of the boot-black stand in the barber shop. Then they started across Third street, and when they got within 15 or 20 feet of the edge of the sidewalk, on the west side of Third street, they looked up and noticed the accused standing at the water-plug at the north-west corner of Third and Alder streets. That as soon as they noticed him, he said: "Mr. Weber, I hear you have been round town looking for me." In reply to which Mr. Weber said: "You son of a bitch, what do you want of me?" And he hardly had the words out of his mouth when Mr. Olds commenced shooting. The first shot missed Weber; the second one struck him in the back of the neck. As he was falling another bullet struck him, and after he was down Olds walked up and shot him at another place, and then stooped over and shot him in the back of the head. Five shots were fired. At the time Olds accosted Weber he was standing up against the water-plug, and had his right hand in his front pants pocket, in which he had the pistol. That when the first shot was fired, Weber threw up his right arm and started to go round the corner of the sidewalk. There was an interval between the first and second shots fired. Witness supposed that a cartridge missed fire, or something similar to that. After Olds fired the last shot, he walked around Weber's body. He looked at witness, and then said, "Now, you son of a bitch, I suppose you will go round looking for me," and then walked down Third street. The witness further stated that Olds was about two feet from Weber when he shot him in the neck, and upon his cross-examination stated that when Olds spoke to Weber the latter reached his left hand up to his pants pocket; that he was probably five, six, or seven feet from him at the time he answered Olds; that he was putting his hand in his pocket while he was addressing Olds.

H.F Gullixson testified, in substance, that he saw Weber at the time referred to by witness Bose; that he had got down a short distance from the lower crossing of Third and Alder streets, and turned around and looked towards the upper corner of said streets, and saw a man fall headlong on his face, with his hands...